The Case of Vanishing Witnesses

NEW ORLEANS — When Michael Eberhardt began preparing for a triple-murder trial of an accused drug trafficker this year, the special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives packed his government credit card and hit the road.

Several days and five cities later — after stops in Arlington, Texas; Houston; San Antonio; Texarkana, Ark.; and Shreveport, La.— he completed an unusual mission: finding six key witnesses to a reign of terror inside New Orleans' Calliope public housing project.

"It took a while, but I got 'em all," Eberhardt proudly declares. One person in the group turned up in a San Antonio jail, he says.

Like virtually every facet of life here, much of the criminal justice system was washed away by the flooding that followed Hurricane Katrina nearly two years ago. Judges, lawyers and criminals fled; court buildings and evidence rooms were flooded. The system is recovering slowly, but a hidden cost of rebuilding involves the expensive and tedious search for dozens of crime witnesses — many of them witnesses to slayings. Like half of the city's pre-Katrina population, they are scattered across Louisiana and much of the nation.

Most of the witnesses have no intention of returning, local police and prosecutors say. In many cases, a fear of retribution from suspects has made witnesses reluctant to make their whereabouts known.

Since last year, criminal charges against more than 3,000 felony suspects have been dropped because of storm-related problems, including damaged evidence and unavailable witnesses.

Some cases have become so shaky to prosecute that officials don't agree on how to proceed. On July 12, Louisiana Attorney General Charles Foti said he was launching a review of Orleans Parish District Attorney Eddie Jordan's actions after murder charges were dismissed against a man implicated in five killings. The district attorney said a key witness in the June 2006 case could not be found.

Within hours of Jordan's decision, New Orleans police located the witness in Baton Rouge, prompting Mayor Ray Nagin to call on Foti to conduct the review.

"This failure to follow through encourages lawlessness and leads law-abiding citizens to feel unsafe," Nagin said in a written statement.

Jordan defended his efforts, saying his office has spent thousands of dollars to find witnesses, including $16,000 in travel expenses in a separate murder case to retrieve three people from one family scattered to another state by the storm.

Jordan asked the Justice Department for more than $1 million to assist with the added costs of finding witnesses. Included in the request is money for three "safe houses" to be located within and outside the New Orleans area to protect cooperating witnesses. Some of the money would pay for permanent relocation of those who face the most serious threats of retaliation.

Scaling Obstacles to Justice

New Orleans' situation is complicated by the massive recovery effort, but its problems rounding up crime witnesses are shared across the nation.

Congress is considering legislation to offer local governments, including New Orleans, federal money and agents to help find witnesses for ongoing cases.

"This is an extremely urgent situation," says Democratic Rep. Elijah Cummings of Maryland, a sponsor of the proposal. He introduced it this year because of repeated episodes of witness intimidation in his district, which includes Baltimore. "If you don't have witnesses, the chances of success (in court) decline substantially," he says.

Last month, Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, suggested that the "growing crisis of violent crime" in New Orleans stemmed from an array of institutional breakdowns, including "reluctance of witnesses to come forward." Leahy said only one of the 160 homicides in New Orleans last year resulted in a conviction.

The district attorney's spokesman, Dalton Savwoir, says he believes Leahy has misrepresented the murder prosecution effort. He says four murder trials were conducted last year, resulting in three convictions. He could not say whether any of those crimes involved murders committed in 2006.

Since Katrina hit Aug. 29, 2005, the system's dysfunction has been magnified in the daily struggle to produce witnesses, defendants, defense lawyers, prosecutors and judges required to stage trials.

New Orleans police detective Ray Jones describes the pool of available and willing witnesses as if they were an endangered species.

In neighborhoods where drug trafficking is rampant, Jones says, dealers intimidate residents with threats of violence to discourage them from cooperating with police.

"Before you know it, the case falls apart, and the defendant is released," the detective says.

The cumulative effect of the system's problems, New Orleans Police Superintendent Warren Riley says, has contributed to the perception that "criminals do not fear our criminal justice system."

The Witness Roundup

On June 17, 2005, when a New Orleans federal judge set a trial date for October for a defendant in a murder and drug-trafficking case, everything was falling into place for the prosecution.

ATF Special Agent Eberhardt and his law enforcement colleagues had spent months building the triple-murder case, cultivating sources whose evidence, they hoped, would win a death sentence or put the defendant away for good.

Then Came Katrina

The Calliope housing project was devastated. Most of its residents — including at least six of the government's witnesses — evacuated.

The murder trial was rescheduled from October 2005 to September 2006, then to March 2007 and finally to October 2007, two years after the initial trial date. Eberhardt declined to name the defendant because he is not authorized to comment on specific defendants involved in ongoing investigations.

Each new trial date set in motion a period of preparation that eventually took Eberhardt on his midwinter tour of the Southwest.

In San Antonio, Eberhardt arrived at an apartment complex at 5 a.m. one day in January, so he wouldn't miss his target: a middle-aged woman and recovering heroin addict. Before Katrina, she had spent weeks being interviewed by federal agents preparing for trial.

Calling out to her from the courtyard, Eberhardt shouted his name and waited. "The only Eberhardt I know is in New Orleans," the woman answered.

"She went outside and looked over the balcony and saw that it really was me," Eberhardt says.

Exhausting Leads

In the district attorney's office, the hunt for witnesses is a constant and costly exercise.

Cases filed since the storm also have been plagued by chronic court delays, inadequate forensic analyses and the lack of witnesses, according to testimony provided last month to the Senate Judiciary Committee.

Mayor Nagin has suggested that many prosecutions have suffered from a simple lack of effort.

In the case that sparked the attorney general's investigation, Jordan dismissed murder charges against Michael Anderson, citing an inability to locate a key witness. Anderson was accused in the slayings of five teenagers in June 2006.

Other lesser charges prevented his release. Nagin said Jordan's earlier decision to drop the case displayed a "disturbing pattern" of behavior by the district attorney's office that was "unacceptable."

Savwoir says investigators have been tracking murder witnesses to their post-Katrina locations and paying their expenses to return for debriefing sessions.

In the past year, the district attorney's office has spent more than $100,000 for travel and living expenses for the return of witnesses and their families, Savwoir says. In 80% of the cases, the witnesses have been lodged at hotels and returned to their new homes after their help is no longer needed.

In one murder investigation this year, the district attorney paid $16,000 in travel, lodging and food for a family of four to stay in New Orleans four months. Three of the family members were potential witnesses, requiring the temporary relocation of the entire family.

"This family was very needy, and we were taking care of their daily needs," Savwoir says.

Jordan, the district attorney, says the problems are extremely complex. A solution, he says, will take money and time. "Nobody understands what we're up against here."